(PC) Spears v. El Dorado County

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA BRIAN SPEARS, No. 2:15-cv-0165 MCE AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS EL DORADO COUNTY, et al., 15 Defendants.

17 Plaintiff has moved for modification of the discovery and scheduling order. ECF No. 103.

18 Defendants Handy, Garcia, and El Dorado County have filed an opposition to the motion (ECF No. 108), to which plaintiff has replied (ECF No. 110). For the reasons stated below, plaintiff’s motion will be denied, and discovery will remain closed. In addition, it will be recommended that defendant Armstrong be dismissed.

22 I. MOTION TO MODIFY SCHEDULING ORDER 23 The discovery and scheduling order in this case has already been modified three times, twice on plaintiff’s motion. See ECF Nos. 76, 100; see also ECF No. 78. The last modification order specified that all discovery must be completed and any motions to compel must be filed no later than June 5, 2023, and that no further extensions would be granted absent exigent circumstances. ECF No. 100 at 2. Plaintiff’s present motion for modification was docketed on June 5, 2023. ECF No. 103. Plaintiff states that he needs additional time to complete discovery related to defendant El Dorado County, which answered the complaint later than the other defendants. See ECF No. 103 at 1-2. The circumstances that plaintiff presents as a basis for further extension of the discovery period—his custodial status and limited access to the law library, his other litigation, work obligations, an out-of-service photocopier, and other processing delays—are common features of prison life and do not constitute exigent circumstances.

6 El Dorado County answered the complaint in November 2022. ECF No. 95. Even accepting plaintiff’s representation that he did not receive a copy until December 2022, he has had over a year and a half since receipt of the answer to conduct discovery. That is more than enough time. This case was filed in 2015 and further delays are contrary to the interests of justice. Plaintiff has not demonstrated exigent circumstances as required for a further modification of the schedule by this court’s prior order, and the motion therefore will be denied.

12 II. DISMISSAL OF DEFENDANT ARMSTRONG 13 A. Background 14 In June of 2021, the court ordered defendant Carol Armstrong to be served along with other defendants. ECF No. 45. Shortly thereafter, the summons for Armstrong was returned to the court unexecuted. ECF No. 47. The process receipt indicated that her whereabouts were unknown. Id. As a result, in October of 2021, the court ordered Armstrong’s former employer, defendant El Dorado County, to provide under seal Armstrong’s last known address so that a reasonable attempt at service could be made. See ECF No. 60.

20 The County complied with the court’s order, but a second service attempt was also unsuccessful. See ECF Nos. 62, 69. Consequently, in December of 2021, plaintiff was directed to inform the court whether he wished to maintain his claims against Armstrong until the end of discovery or voluntarily dismiss her. ECF No. 71. Plaintiff opted to retain her as a defendant until the end of discovery, and he stated that he would “diligently obtain a valid service address” for her. ECF No. 72.

26 B. Discussion 27 Absent good cause or an extension of time, if a defendant is not served within ninety days after the complaint is filed, the court is required to dismiss the action against that defendant. Fed. || R. Civ. P. 4(m); Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (citing Gillespie v. | Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Since December of 2021, plaintiff has been given || additional time to determine an accurate address for defendant Armstrong and request that she be || served. Despite multiple modifications of the discovery and scheduling order — which extended || the close of discovery date (see ECF Nos. 76, 78, 100), and thus, plaintiff’s time to find an || accurate service address — plaintiff has not indicated that he has found one for defendant || Armstrong so that she can be served. For these reasons, it will be recommended that defendant | Armstrong be dismissed pursuant to Rule 4(m).

9 CONCLUSION 10 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to modify the discovery || and scheduling order (ECF No. 103) is DENIED.

12 IT IS FURTHER RECOMMENDED that defendant Carol Armstrong be DISMISSED || without prejudice pursuant to Fed. R. Civ. P. 4(m).

14 These findings and recommendations are submitted to the United States District Judge || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days | after being served with these findings and recommendations, any party may file written || objections with the court and serve a copy on all parties. Such a document should be captioned || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the || objections shall be served and filed within fourteen days after service of the objections. The || parties are advised that failure to file objections within the specified time may waive the right to || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

22 || DATED: September 19, 2023 .

23 Cthren— Lhar—e_ 24 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE